Katherine Leonard: Judgment by character assassination

It’s too early to tell what will happen with Gov. Linda Lingle’s nomination of Katherine Leonard as Hawai’i’s first woman chief justice when the Senate votes on her confirmation later in the week.

But one thing that’s clear is that the last-minute anonymous hit on Leonard by the Hawai’i State Bar Association was a major act of wimpiness on the part of the lawyers.

The bar association’s 20-member executive committee voted Leonard “unqualified” Monday, but refused to say what the vote was, who voted how or what the reasons were for the negative finding.

In contrast, the American Bar Association provides a detailed written explanation of its ratings when it advises the U.S. Senate on federal judicial appointments.

HSBA President Hugh Jones said the secrecy is necessary to allow attorneys to speak freely and protect them from retaliation by judges.

Senate Judiciary Chairman Brian Taniguchi backed him up, saying, “They need to have kind of a safe haven place where attorneys can come and are free to say stuff that may be critical of a judge.”

This is nonsense. If lawyers want to play a role in judicial selection, they need to have the guts to publicly stand behind their recommendations. There is simply no place for anonymous character assassination in such important public policy decisions.

Why should these secretive deliberations be given more credence than the dozens of experienced and highly respected attorneys who have put their names behind enthusiastic endorsements of the nominee?

Who’s to say the vote didn’t reflect anonymous lawyers retaliating against a judge who ruled against them? Who’s to say the bar association’s process wasn’t politically manipulated by senators looking for cover to shoot down a key appointment of the governor from an opposing party?

The only way to silence such suspicions is to let the sunshine in.

A central rule of the courts in which these lawyers are officers is that people have a right to face their accusers. Any recommendation resulting from their spineless attempt to exempt themselves from this basic ethic lacks credibility and should be disregarded.

31 Comments on “Katherine Leonard: Judgment by character assassination”

Aloha ~
HaHa!!! On a blog where most people post anonymously, which in my opinion allows for unwarranted character assassination, David now calls for attorneys to fully disclose their positions – knowing they might have to stand before the nominee in future formal legal proceedings.

Do unto others … but not to me. This current disease in America continues!

I’m for sunshine – so let’s set the example on these pages before asking others to do what we apparently refuse to do.

When I and others post anonymously, I present a point of view and readers have a choice of either accepting or rejecting my argument or point of view.

A simple common sense compromise regarding the bar associations committee findings would be to submit their “no confidence” decision and include a compilation of ANONYMOUS comments from any or all of their 20 committee members in a single summary report that can be reviewed by State legislatures, Leonard and the public. In that case the 20 committee members are free to write whatever they want regarding Leonard yet remain anonymous as it would be impossible to determine who among the 20 members submitted any particular comment, positive or negative, toward Leonard.

This is Hawaii and whether Leonard is qualified or not is irrelevant. This all about politics and power and the fact that Leonard was chosen by Lingle, which for many is sufficient grounds for many lawyers and Democratic State legislatures to oppose the nomination. Anyway what kind of leadership is necessary in a State Supreme court justice? Isn’t the whole point of the court is for each judge to offer unbiased, independent decisions and NOT as a single cohesive unit but as independent individuals who will make a final decision based on majority rules? Therefore a strong leader and personality is NOT desired, rather someone who is able to provide subtle and but clear guidance and direction on which cases they should review and make sure the Hawaii supreme court decisions are made in a timely manner. If I remember a few years ago, there was a news article pointing out that under Moon, the Hawaii State supreme court was very SLOW in rendering their final decisions and incredibly low number of cases scheduled/allowed to be reviewed by the court.

While much of the debate is focused on Ms. Leonard’s judicial credentials we should keep in mind that competence as a jurist is only one of the many qualifications needed to become the Chief Justice of the Hawaii Supreme Court. The chief executive of the Judiciary must also have credentials as leader, an administrator, and politician. When you consider that the head of the Judicial Branch must be able to inspire and lead his/her subordinates, engage in politics with the leaders of the other branches of government, and while building or creating a foundation for the courts’ future, legal scholarship and judicial temperament do not seem to be the most important qualifications for a Chief Justice. Based on everything I have seen and heard so far in these proceeding while am I convinced that Ms. Leonard is an excellent judge and probably a legal scholar I have heard very little about her leadership abilities or about her vision for the Judiciary under her leadership nor have I been given any reason to have confidence in her ability to engage in politics on a co-equal basis with the leaders in the other branches of government. As far as I am concerned the jury is still out on Leonard.

Wow, Dave! Your statement seems a bit over the top. Maybe I am not paying attention. I wasn’t at the hearing and the news account I saw was pretty brief, but I haven’t seen anything that rises to the level of “character assassination.”

The CJ seat is an extremely important position and the standards for appointment should be high. The executive committee of the Bar Association, in reviewing Judge Leonard’s resume and knowing her in a professional capacity, might very well come to the conclusion she is not qualified to be CJ. Such a conclusion does not by itself constitute “character assassination.”

You dislike the “Star Chamber” character of their process. That reflects your strong commitment to fair play. I share that. But a lot of deliberative bodies go into “executive session” to discuss personnel decisions frankly. That is one of the explicit exemptions in the state’s Sunshine Law governing the conduct of official business. I have been in meetings of private organizations where employees (or a job applicant) has been asked to leave the room to allow for the free expression of ideas in evaluating them.

In the case of the appointment of a judge, do you really expect attorneys to feel uninhibited in providing their frank opinion? Would a partner in a major law firm, whose firm routinely argues cases before both the ICA and the State Supreme Court, truly feel free to express his/her discomfort with an appointment and then have to live with the consequences of speaking freely?

To suggest high-level attorneys would not be inhibited under such circumstances strikes me as extremely unrealistic. So the Bar has established this confidential review process. You say the process might be distorted by the bias of individual members of the committee. Well, yeah, welcome to the deliberative process as conducted by human beings. But these are among the top professionals in the state. There are twenty of them. I assume (silly me) that they take their responsibility seriously and that checks and balances within a group that size would ensure a responsible discussion. You appear to assume they are all petty, partisan jerks. (Must be your “hopelessly idealistic” side talking!)

ccpp suggests the judge is entitled (and the legislators & public are entitled) to a list of the comments by the members of the committee, with the names redacted. At first glance, that sounds reasonable. But what does it really provide us? If an attorney does not respect her intellect, her legal reasoning or her temperament, how detailed should the evidence be before the legislators and public learn enough to form their own judgment on the merits of the criticism? How detailed must it be before the judge figures out which of the 20 members made the criticism? I just don’t see that as workable.

Watching how people are lining up on this, it seems to me that people are allowing their own prejudices to affect their perception. I don’t know Judge Leonard. My sense is that few people commenting here, probably including you, know much about her either. I certainly am in no position to judge her qualifications to be CJ. But I hope someone will be taking that question very seriously and, I guess, I am inclined to trust the professional judgment of the Bar Association unless or until someone can point to a pattern of abuse on their part or demonstrate a clear bias against the nominee in this case.

“This is Hawaii and whether Leonard is qualified or not is irrelevant. This all about politics and power and the fact that Leonard was chosen by Lingle….” And then goes on to say:
“Anyway what kind of leadership is necessary in a State Supreme court justice?”

So ccpp has concluded Leonard’s qualifications for the job are NOT important. For him, it is only a matter of power politics and”which side are you on?” That’s a heckuv an admission and a tip of my hat to his honesty in admitting his bias.

So what are we left with? The Senate hears testimony, some open, some like this Bar Committee vote of “no confidence” less specific and unsourced. If I were a senator, I would be troubled by the Bar committee position, but I would weigh it against the other testimony and conversations with attorney friends before coming to my decision. If the Bar report were more specific, it would probably carry more weight. Remaining vague, it is only discomforting.

There seems to be an assumption in some of the comments, and even in your commentary, that Lingle has the right to have her appointment confirmed and that Leonard has the right to be confirmed, barring some demonstrable “incompetence,” breach of ethics, or other disqualification. I disagree. I think the Senate’s “advise and consent” responsibility is serious. If they do not have confidence in Leonard’s suitability, I think they should turn her down.

And I would say that regardless of who was Governor or the political party controlling the Legislature.

I think one word can describe why Leonard will probably not be confirmed by the Democratically controlled State Legislature.

RAIL………….

Just remembered the movie ‘Pelican Brief’ starring Julia Roberts and Denzel Washington and the basic premise of the story was special interest trying to manipulate the makeup of the Supreme court so that they would be favorable into opening up previously protected land that contained endangered pelicans to an oil tycoon so that he could open up the land for oil extraction.

When Leonard says she will independent in her decisions and will maintain the “high ideals” of the court that is the wrong answer that many in power don’t want to hear. This Kabuki theater has NOTHING to do with leadership abilities or “building or creating a foundation for the courts’ future”. Despite what Mufi and his minions has been constantly saying, rail is NOT a done deal and it would greatly help them if they have a sympathetic State supreme court when future lawsuits are filed against the rail project. This includes the initial start of the rail project and the issue of the EIS, when ancient Hawaiian remains are found in the path of the track and when individual landowners file suit when the City confiscates their property via eminent domain so that the rail track or rail stations can be over their properties.

Leonard is an unknown variable and the best outcome for Mufi, the Demos and the special interest involved in rail is if State Legislatures reject ANY supreme court justice nomination by Lingle and instead wait till Mufi is elected (IF he is elected) so that he can personally choose who he wants to be the next supreme court justice. With literally $10++ BILLION dollars at stake regarding the future of Mufi’s rail, they will do whatever it takes, as long as no one is caught, convicted and sent to jail to insure that rail is built on Oahu.

In the case of the appointment of a judge, do you really expect attorneys to feel uninhibited in providing their frank opinion?

I could write a whole column of flASHback jokes about lawyers off of this question, but to keep the discussion on track I’ll just say that yes, I expect them to have the guts to stand behind their opinions if they want to be players in setting public policy. Any recommendation that comes out of this weaselly process that’s so open to manipulation isn’t worth the proverbial bucket of warm spit.

When I first learned of doubts about Judge Leonard’s confirmation, I was expecting scandalous stuff. Wow, this is just about whether she can lead and personality? Yikes, that sounds like pure subjective analysis right there.

I mean what person is ready to be the CJ? There’s only one and usually it’s held decades at a time. No one really knows exactly what to do. But smart people usually figure it out. And it’s not as if she’s working alone in some vacuum. There are law clerks, admin. clerks and other staff officials — those that are going to remain after CJ Moon retires, who will help her along. I don’t see what the problem is.

What is the standard of review of the Gov’s selection? For HSBA to work in a black box is wrong and I don’t get how the HSBA board, in this day and age, would adhere to such a backwards process. Mr. Jones’ concern about reprisal is easily addressed by keeping comments anonymous and providing some general principles for their position. Providing none is like a little kid on a playground who tells you he hates you and will not be your friend – and you ask why – and he tells you “just because.” Childish.

For them to be completely unaccountable (when an easy remedy is available) is absurd, in my opinion. This ain’t some east coast private boarding school where the trustees operate in secrecy or the Free Masons. It’s about the highest court in the State, and of public concern.

Dave, this quote from yesterday’s paper implied that Leonard lacked the “gravitas” necessary to be the CJ:

“Paul Alston, also a former bar president, said the key question is whether Leonard has the “experience and command and respect of judges, and perhaps, even more importantly, the Legislature and the executive branch, which are really critical to the selection of a chief justice.” He said strong arguments can be made that the chief justice must be able to draw on that reputation, and the question of whether Leonard has that kind of “gravitas” is what has generated the criticism against her.”

This strikes me as quite sexist. Because Leonard is not a tall, broad, masculine presence, like the “sure pick” everyone expected, Judge Mark Recktenwald, she is seen as lacking this alleged key quality. So traditionally more female-oriented characteristics, like the ability to get along with others, the quiet ability to pursue excellence, the ability to see more than one side of the question – these all must give way to “gravitas”? Didn’t we have that with CJ Moon? And he did not get along well with the Legislature, who viewed him as uncooperative and not always respectful of their role as an equal branch of government. My, my, yes, let’s have more of this “gravitas” stuff. Why be competent and hard-working when you have have a loud, booming voice?

I see a party game. What lingle does, let’s protest.
I see payback for what lingle did. Veto and we Veto your vote or endorsement so says the other party.

lingle said in the past, that one in her office cannot make a decision alone and let the public decide.

It seems The Bar is saying lingle is not a lawyer and cannot know the qualifications of a Judge. That the decision is not hers alone but for The Bar to decide.
The Bar consisting of people who are hired guns.
No reason. One shot One Kill.

I agree that “gravitas” comes across as sexist in this context, as does lacking judicial temperament, which appears to translate to “bitch.” I have no particular affinity for Leonard and like Recktenwald and Foley a lot, but I know a transparent political hit when I see one.

I may be the original Mr. Magoo. You ssay this is a “transparent political hit.” So, what then, because it is so “transparent,” you have no need to describe how it qualifies as a “political hit”?

So imagine I am a blind man. I sincerely know nothing about Juge Leonard and her qualifications. Explain in broad terms why you think she is qualified to be Chief Justice and why those who disagree with you are “transparently” motivated by politics? What is their agenda? What motivates them? Who are the ringleaders of this conspiracy on the Executive Committee of the Bar Association? And how did they get Hugh Jones, a DEPUTY ATTORNEY GENERAL under Mark Bennett, to play along?

You speak of your sense of what constitutes “fair play.” Well, my sense of “fair play” means you gotta provide a little bit of evidence if you are going to malign an identifiable group of people like the HSBA Exec. Cte. and even, heaven forbid, the members of the State Senate.

You got a “hunch” behind your conspiracy theory about the cabal against the nomination or a rational explanation as to why your interpretation should be accepted over those who believe Judge Leonard would not be a good choice?

And you might recall Ted Hong was said to lack “judicial temperament” and was rejected. Was the subtext on that occasion that he was a “bitch”?

I know Kate Leonard and her current husband Ian Sandison. I like Ian. I respect Kate’s keen intellect and ability as a litigator and a lawyer.

The State Constitution creates a Judicial Selection Commission to foster merit selection of judges — the assumption being that anyone on a list submitted to the nominating authority (the Chief Justice for the District Court and the Governor for the Circuit and the Appellate Courts) is qualified. The Senate still gets to advise and consent but what is it that they’re to consider about a Judge (I still remember then-Senator Matt Matsunaga asking nominee James “Duke” Aiona about the latter’s infamous temper and competitiveness on the Lawyers’ League basketball court and how that related to proper judicial temperment). The local bar has been a fraternity that only rarely has risen above the usual go along to get along mentality (i.e., and so Jim Bickerton gets celebrated for going after his former Goodsill colleague Sharon Himeno when she was appointed to the Hawaii Supreme Court as the possible first female Justice in recent times).

I’ve seen Clyde Namuo (before his retirement), and Rick Keller and Walter Ozawa handling the day to day administrative duties of the Judiciary so you really just need a leader to provide direction (Kate’s one comment about having no agenda is the only question mark in my mind– other than using technology to make access to justice easier, what else does she think is important?). Is Kate the hale, let’s get a beer after work pal? Never thought so, but she’s a good lawyer from one of the toughest firms to become a partner, she’s worked on Access to Justice issues with the American Judicature Society, she served as a leader with the Boy Scouts. What’s wrong with being a mother as well as a good lawyer?

It would be nice to know how the Board voted but only Hugh Jones testified.

Of the Board members, perhaps Nadine Ando was still at Carlsmith when Kate Leonard and Ian Sandison were summer associates or new partners. I don’t think any of the other board members hailed from her law firm. Perhaps they litigated against her, and like Mark Bennett, got played like a drum in court.

“I expect them [lawyers critical of Leonard’s appointment] to have the guts to stand behind their opinions if they want to be players in setting public policy.”

You kinda broadened out your answer there. If they “want to be players”? How’s about “if they want to share their misgivings based upon their experiences”?

An attorney who alienates a judge does not just hurt his (her) own career, they put in jeopardy the interests of future clients whose cases they may have to argue in front of a judge who they criticized in public. It would border on legal malpractice for them to not recuse themselves should such circumstances arise.

Be unhappy about the anonymity in the process if you will. But please don’t shut down your critical abilities to the point you do not recognize the anonymity serves SOME legitimate function.

Perhaps employees should be encouraged to evaluate their employers in public? Or, since you are so fond of unions, perhaps union elections should be conducted through a show of hands? After all, if a union member doesn’t “have the guts” to publicly express their attitude towards the union leaders, their opinions aren’t worth “a bucket of warm spit.”

On the question of qualifications, I’m like you; I don’t have first-hand knowledge of whether she’s qualified or not. It becomes a question of who among those who have more first-hand knowledge we choose to believe.

You, and apparently Sen. Taniguchi, choose to give the most weight to the unspecified concerns of a small group of anonymous lawyers and a few who have put their names behind vague and totally subjective concerns about “gravitas” and “temperament” and experience. You choose to disregard that the Judicial Selection Commission, which includes members appointed by the Senate president, found her qualified after considerably more vetting than HSBA. You choose to disregard dozens of known and respected attorneys who are strongly vouching for her based on detailed information gained from their experience with her and the judicial system. The only reason I can see why you or the senators would base your judgment on such flimsy information is because it fits in with your political disinclination to support a Lingle nominee regardless of qualifications. One of the lawyers in this town I respect a lot is Jay Fidell and I give a lot of credence to his thoughts here. Dozens of others who have proven “gravitas” in the legal community and community at-large have said much the same thing.

Your argument about HSBA needing to operate in anonymity because Judge Leonard might retaliate against them is weak. It looks more like they’re retaliating against her under the cover of secrecy and absence of accountability generously provided by the senators who get political cover for their votes in return. How cozy. You can’t pass off the HSBA as merely “shar(ing) their misgivings based upon their experiences.” They are an official part of the confirmation process and they owe the Senate and the public the same kind of detailed report to justify their recommendations as the American Bar Association gives the U.S. Senate on federal judicial appointments. What they’ve given is sniveling wimpdom and how nice for them that they have you to rise in their defense.

i’m curious to know how kathrine leonard feels about natural law.i just have this feeling that no one will ever ask her thoughts on it.to me the law as it is now is what ever those in power say it is.and every time the state legislators pass a new law,a little bit more of our personal liberties are being slammed. the confirmation process for the nominee for CJ is a political one.conservatives want conservatives on the bench and the liberals want the liberals on the bench.and every special interest group that feels threatened by a nominee will chip in one way or another.the bar associations have a monopoly on lawyers.there are over 2 million people in prison in hawaii and the mainland for non-violent “criminal” activities.who are the agressors?judges and political ruling class.my support is for the defense attornies!good luck.

One factor may have been that if Gov L appointed Justice Recktenwald as CJ, there might not have been enough time to appoint and confirm someone to fill the Associate Justice seat he presently occupies, resulting in one less HAWSCT seat filled by Gov L.

I will defer to “Obert” on legal matters. But I will note he suggested elevating Recktenwald may have been “one factor” in Lingle’s decision to bypass him.

But I agree with Cap/Up that the Recktenwald angle may be an important part of the story which is being overlooked with all the focus on Leonard and whether the HSBA’s process is fair, etc.

I’d be interested in Robert’s thoughts on a comment I read recently on another blog (sorry, I cannot retrace my steps to find it). A frequent commenter whose opinion I respect wrote how he was following a State Supreme Court case and when he saw Recktenwald decision, he thought to himself, “Mark has just lost his chance to be appointed CJ.” (I paraphrase).

The case was 4-1, as I remember it. And pretty significant, though again, I cannot remember what it was. (Don’t ever get old!)

Robert, can you figure what the heck I am talking about and in your opinion, is it possible Recktenwald’s rulings have not been enough of a break from the opinions of the other justices to satisfy the Governor?

Kolea. I think you’re referring to the case which overturned a decision by an ICA panel in which Kate was a member (County of Hawaii v. Ala Loop Homeowners, ). It involved a challenge by neighboring landowners to locating a Charter School in their community without the Charter School obtaining a Special Use Permit under HRS chapter 205. In a summary disposition, Kate’s ICA panel dismissed the case based on the notion that ALa Loop Homeowners had NO private right of action to enforce its rights under HRS chapter 205. Mark wrote the opinion that found that Hawaii’s Constitution provides a private right of action for a Hawaii resident to enforce the right to a clean natural environment in Art 11, sec 9 of the Constitution. Robert Thomas wrote about the decision in his inversecondemnation blog. I had the same quick thought since some land use lawyers and developers saw that the Supreme Court reasoning might allow private lawsuits based on Art 11, Sec 9 in a variety of land use and zoning contexts– which is an expansive reading of the Constitution that GOP types might think is beyond what judges should be doing.

The point is that we really dont know the reasons—even for the Senate judiciary’s committee refusual to send to senate with an approval—the whole idea about leadership and administration experience is SHIBAI–Jay Fidel’s letter to the editor exposed that argument–Its nonsense!!

Is this is simply ALOHA GOVERNOR—HERE TO YOU!!?? It seems so to me!

IN OTHER WORDS, WE DONT HAVE TO DEAL WITH YOU ANYMORE AND WE ARE TAKING OVER FULL 100 % CONTROL WHEN YOU ARE GONE!

My sense is that Charles is slightly older than I am, but that he has retained more of his marbles.

And thanks for the link to the case. I continue to be impressed by the quality of the comments on Dave’s blog.

Now if only we can convince Doug to resume posting regularly on Poinography AND pray (heh) that Derrick DePledge gets his own dedicated blog once again, we can elevate the discourse and resolve the important issues like gentlemen (sic)!

From 25 years mediating and arbitrating here and 32 as an attorney, it seems that conflicts among people are often associated with breakdowns in communications and relationships, and with attitudes, behaviors, strategies and choices that foster conflict more than collaboration. An important question becomes whether those involved in the conflict, directly or by their interest in it, exhibit and invite communications and actions that feed competition and conflict or promote mutual benefit and resolution. The tone and content of words and actions concerning this conflict have seemed to go more in the competitive than collaborative direction, and if that continues, whatever the outcome is may well reflect that. One of the hardest challenges is for people to act the most reasonably, objectively, humanely and ethically in an intensely conflicted situation. Unfortunately, this particular process does not include or offer negotiation in ways that might facilitate resolution through mutual benefit. It may be that we need to give some thought not only to the people and the specific situation involved here, but also to the process and relationships involved in the larger sense, and to see if those in positions of leadership and responsibility in the public and private sectors and the media, can bring collaborative attitudes and skills to work toward resolution of both the particular and larger issues involved. Dave’s and others’ input above encourage that collaborative resolution effort.

the only way to get meaningful reform in the judicial industry here in hawaii is a regime change.demand changes from our politicians.get some principled people to run for office.as for judge leonard,i wish her well.i hope she is not one of

I’m pretty skeptical that a decision in a case that didn’t generate a single headline, especially with the opinion being rendered so near to the Gov’s appointment of J. Leonard, had any part in the decision to appoint or not appoint Justice Recktenwald as Chief. An opinion in a single case — whether it’s good or bad from the appointer’s perspective — does not reflect a whole lot about a judge’s overall approach, and it certainly does not a judicial career make (or break).

It would take an extreme decision outside the bounds of mainstream legal thinking to disqualify a person from consideration, in my opinion. And the Ala Loop decision, while I disagree with its result and analysis, was not one of those cases. It seems very unlikely that Justice Rectenwald’s opinion for the unanimous court in that case had anything to do with Gov Lingle nominating Judge Leonard.